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On the issue of negligence, one of the questions for you to decide in this case is whether the [accident] [injury] involved occurred under the following conditions:
First, that it is the kind of [accident] [injury] which ordinarily does not happen unless someone is negligent;
Second, that it was caused by an agency or instrumentality [in the exclusive control of the defendant] [over which the defendant had the exclusive right of control] [originally, and which was not mishandled or its condition otherwise changed after defendant relinquished control]; and
[Third, that the [accident] [injury] was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of plaintiff's injury.]
If, and only in the event that you should find these conditions to exist, you are instructed as follows: | TOP |
Plaintiff claims an [accident] [incident] occurred causing plaintiff to suffer injuries; defendant denies it. If you should find that there was an [accident] [incident] [and plaintiff was injured thereby], then you must determine whether the [accident] [incident] occurred under the following conditions:
First, that it is the kind of [accident] [incident] which ordinarily does not happen unless someone is negligent; [and]
Second, that it was caused by an agency or instrumentality [in the exclusive control of the defendant] [over which the defendant had the exclusive right of control] [originally, and which was not mishandled or its condition otherwise changed after defendant relinquished control][;] and[.]
[Third, that the [accident] [incident] was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of plaintiff's injury.]
If, and only in the event that you should find these conditions to exist, you are instructed as follows: | TOP |
From the happening of the [accident] [injury] in this case, you may, but are not required to, infer that a cause of the occurrence was some negligent conduct by the defendant.
However, you must not find that a cause of the occurrence was some negligent conduct by the defendant unless you believe, after weighing all the evidence in the case and drawing such inferences therefrom as you believe are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct by the defendant. | TOP |
You must find from the happening of the [accident] [incident] involved in this case that a cause of the occurrence was some negligent conduct on the part of the defendant. | TOP |
If, before an event occurred in which the plaintiff was injured as a result of defendant's negligence, the plaintiff had expressly assumed the risk of such injury by specifically agreeing with the defendant that plaintiff would not hold the defendant responsible if an injury should be caused by the defendant's negligence, the plaintiff may not recover damages from the defendant for that injury. | TOP |
A person who, without negligence on [his] [her] part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of, or the appearance of, imminent danger to [himself] [herself] or to others, is not expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments. [His] [Her] duty is to exercise the care that an ordinarily prudent person would exercise in the same situation. If at that moment [he] [she] does what appears to [him] [her] to be the best thing to do, and if [his] [her] choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, [he] [she] does all the law requires of [him] [her]. This is true even though in the light of after-events, it should appear that a different course would have been better and safer. | TOP |
When a situation of peril such as that just described is caused by someone's negligence, and the person in peril, acting under the impulse of fear, makes an instinctive and reasonable effort to escape and, in so doing, injures [himself] [herself] [or a third person], the negligence that caused the peril is deemed to be a cause of the injury. This is true even though it might have appeared, or after the event it may appear, from the viewpoint of another person, that the effort to escape was unwise or that [the person in danger would not have been injured] [no one would have been injured] if that effort had not been made or had been made differently. | TOP |
A person who is under no duty to care for or render service to another but who voluntarily assumes such a duty, is liable to the other for injury caused by a failure to exercise ordinary or reasonable care in the performance of that assumed duty. | TOP |
(Business and Professions Code § 25602.1)
The plaintiff ____________________ [also] seeks to recover damages based upon a claim the defendant violated Business and Professions Code Section 25602.1.
The essential elements of such a claim are:
[1. The defendant [_______________] was [licensed] [or] [required to be licensed] to sell alcoholic beverages;
2. Such defendant sold, furnished, gave or caused to be sold, furnished or given away an alcoholic beverage to an obviously intoxicated minor [, namely _______________];]
[1. The defendant sold, or caused to be sold an alcoholic beverage to an obviously intoxicated minor [, namely _______________];]
[3.] [2.] Such minor engaged in conduct which resulted in [personal injury] [or] [death] to [plaintiff] [_______________] [himself] [herself];
[4.] [3.] The [sale,] [furnishing] [or] [giving away] of the alcoholic beverage was a cause of such [personal injury] [or] [death].
For the purpose of this instruction, a minor is a person under 21 years of age.
The term "obvious intoxication" refers to visible and outward manifestations of intoxication, which include incontinence, unkempt appearance, alcoholic breath, bad or boisterous conduct, bloodshot or glassy eyes, incoherent, slow, deliberate or slurred speech, flushed face, poor muscular coordination, unsteady or slow and deliberate walk, loss of balance, impaired judgment or argumentative behavior. For an individual to be obviously intoxicated [he] [she] must exhibit one or more of these outward and visible signs of intoxication sufficiently to cause a reasonable person to believe that [he] [she] is intoxicated. It is not sufficient to merely show that an individual had been drinking. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon the rescue doctrine.
The essential elements of such a claim are:
1. The defendant engaged in negligent conduct;
2. Such conduct threatened real and imminent serious harm to the [person] [or] [property] of another;
3. The plaintiff attempted to rescue the endangered [person] [or] [property];
4. In attempting such rescue, the plaintiff suffered injury, damage, loss or harm; and
5. The defendant's negligence was a cause of the rescue attempt and of the [injuries] [damage] sustained by plaintiff in the course of such rescue [attempt]. | TOP |
(Civil Code §1714.9)
The plaintiff ____________________ [also] seeks to recover damages based upon a claim pursuant to Civil Code Section 1714.9.
The essential elements of such a claim are:
1. Plaintiff was a ____________________ (peace officer, etc.) employed by a public entity; and
[2. After the defendant knew or should have known of plaintiff's presence, defendant engaged in willful or negligent conduct that caused injury to the plaintiff]. [;] [or]
[3 A. After the defendant knew or should have known of plaintiff's presence, defendant engaged in conduct that violated a ____________________; (statute, etc.)
B. The violation of ______________________ (statute, etc.) was a cause of injury to the plaintiff;
[C. The ____________________ (statute, etc.) was designed to prevent the injury plaintiff sustained;] [or]
[4 A. Defendant engaged in conduct intended to cause injury to the plaintiff; and
B. Defendant's conduct caused injury to plaintiff[.] [;] [or]
[5 A. Defendant engaged in conduct constituting arson; and
B. The arson caused plaintiff to sustain injury.]
[____________________ is a public entity.]
[A ____________________ (statute, etc.) prohibiting resistance or requiring a person to comply with an order of a ____________________ (peace officer, etc.) is designed to protect the ____________________.] (peace officer, etc.)
[A ____________________ is a ____________________.] (peace officer, etc.)
[Arson occurs when a person willfully and maliciously sets fire to or burns or causes to be burned or who acts, counsels, or procures the burning of, any structure, forest land, or property.
Maliciously means an act was done with a wish to vex, annoy, defraud or injure another person, or with an intent to do a wrongful act.]
[Willfully means an act was done with a purpose or willingness to commit the act. It does not require an intent to violate the law, injure another, or acquire any advantage.] | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of reckless misconduct by a co-participant in an active sporting event.
The essential elements of a such a claim are:
1. Plaintiff and Defendant[s] were co-participants in an active sporting event;
2. Defendant[s]'[s] physical conduct caused plaintiff to suffer injury;
3. The defendant intended to injure plaintiff, or was so reckless as to be totally outside the range of the ordinary activity involved in the sport.
[A defendant intended to inflict injury if it is established that [he] [she] desired to cause such injury or knew that such an injury was substantially certain to result from [his] [her] conduct.]
[A co-participant in an active sport is not subject to liability for an injury resulting from conduct in the course of the sport that is merely accidental, careless, or negligent.] | TOP |